Theoretical and practical considerations on probation in labor disputes

Abstract:
Having the actori incubit onus probandi apothegm as a starting point, we shall examine the particular aspects of probation in work -related conflicts, as stipulated in the 272-273 Article within the 53/2003 Law regarding The Labour Code and 212 Article within 62/2011 Law on Social Dialogue. The objective of this paper is to examine distinct features related to the functions of evidence, to the set of fundamental principles which underlie the judicial proceedings of probation in work -related conflicts, as well as the active role of the judge in order to assure a righteous and fair trial. All the elements referred to will be regarded from historical, hermeneutic, teleological and comparative points of view. The specific character of regulations underpinning the management procedures regarding probation in work -related conflicts, differing from the provisions under statutory law, highlights the legislator's choice towards establishing a simple and urgent procedure. It should be adjusted to the work terms and to the individual right to work, representing a genuine guarantee for bringing the law claims which derive from adequate or inadequate performance of individual or collective contracts, performed by the employer. Examples provided by judicial practice uncloak the difficulties encountered by both parties of the trial and court when it comes to enforcing the specific provisions for the application of the legislation, fact which is not always compatible with the legislature’s aim, by means of regulation.